Hoovi Kom Subray Marati vs Laxman Shivu Marati
2021 Latest Caselaw 1626 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH
          DATED THIS THE 15th DAY OF JANUARY, 2021
                           BEFORE
           THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
            REGULAR SECOND APPEAL No.6235/2012
BETWEEN:
Hoovi Kom Subray Marati,
Aged 63 years, Agriculturist,
R/o. Tenkanabail Sonda Village,
Tq. Sirsi (U.K.), Pin: 581402                                      ... Appellant

(Sri. Anant R. Hegde, Advocate for Appellant)
AND
1.    Laxman Shivu Marati, Aged 73 years, Agriculturist,
      R/o. Tenkanabail Sonda Village,
      Tq. Sirsi (U.K.), Pin: 581402
2.    Puttu Shivu Marati, Aged 78 years, Agriculturist,
      R/o. Tenkanabail Sonda Village,
      Tq. Sirsi (U.K.), Pin: 581402
      Marati since dead by L.Rs.
3.    Tikru Shivu Marati, Aged 43 years, Agriculturist,
      R/o. Advimane Agasal village,
      Tq. Sirsi (U.K), Pin 581403.
4.    Hoovi Diklu Marati, Aged 48 years, Agriculturist,
      R/o. Advimane Agasal village,
      Tq. Sirsi (U.K.), Pin : 581403.
5.    Somi Krishna Marati, Aged 45 years, household,
      R/o. Devadhakeri, Po: Bhairumbhe,
      Tq. Sirsi, (U.K.) Pin: 581402.
6.    Laxmi Yanka Marati, Aged 41 years, Household,
      R/o. Advimane Agasal village,
      Tq. Sirsi (U.K.), Pin: 581403.
7.    Nagi Yanka Marati, Age 38 years, Household,
      R/o. Advimane Agasal village,
       Tq. Sirsi (U.K.) Pin: 581403.
8.    Sharavati Dhanya Marati, Aged 28 years, Household,
      R/o. Advimane Agasal village,
      Tq. Sirsi (U.K.) Pin : 581403.                     ... Respondents

(Sri. S.V.Yaji, Advocate for R1;
Sri. K. Raghavendra Rao & Smt. V. Vidya, Advocates for R3 to R8)
                                                V/C/O dated 25.02.2021,
                                                corrections carried out.
                                                           Sd/-
                                                         (RVHJ)
                                      2




      This RSA is filed under Section 100 of CPC., against the
Judgment and Decree dated 29.06.2012 passed in R.A.No.37/2009
on the file of the Presiding Officer, Fast Track Court, Sirsi, partly
allowing the appeal, filed against the Judgment dated 11.06.2009
and the decree passed in O.S.No.211/1993 on the file of the
Principal Civil Judge (Jr. Dn.) Sirsi, partly decreeing the suit filed for
declaration.

     This RSA being heard and reserved for Judgment                    on
08.01.2021, this day, the Court delivered the following:


                                 JUDGMENT

The above appeal is filed challenging the Judgment and

Decree dated 29.06.2012 passed by Fast Track Court, Sirsi in

R.A.No.37/2009 and Judgment and Decree dated 11.06.2009

passed by Principal Civil Judge (Jr. Dn.) Sirsi, in O.S.No.211/1993.

2. The appellant herein was defendant No.3 in

O.S.No.211/1993 and appellant in R.A.No.37/2009. Respondent

No.1 herein was the plaintiff in the suit and respondent No.1 in

appeal. Respondent No.2 was defendant No.1 in the suit and

respondent no.2 in appeal. Respondent Nos.3 to 8 are legal heirs of

defendant No.2. They were brought on record after death of

defendant no.2 during pendency of R.A.No.37/2009. For sake of

convenience, parties will hereinafter be referred to as per their

respective ranks before trial Court.

3. Brief facts leading to this appeal are that, plaintiff

Laxman Shivu Marati filed suit against defendants for relief of

declaration to declare that alleged Will dated 21.08.1984 executed

by Shivu Marati in favour of defendant No.3 as null and void and to

declare plaintiff has got 5/12th share in plaint-'A' and 'B' schedule

properties. It was stated in plaint that property comprised of lands

bearing R.S.No.316-3 measuring 1 acre 20 guntas and R.S.No.314-

2 measuring 1 acre 31 guntas situated at Sonda village (Schedule

'A') and movable properties (Schedule 'B') were joint family

properties of Shivu Marati. Two other brothers namely Huliya and

Shannu got divided and had taken their share in joint family

properties during life time of their father, Shivu Marati and had

separated from joint family. Therefore plaintiff had share in

remaining properties along with defendant Nos.1 to 3. It was

further stated that, Shivu Marati died about two years prior to suit

and thereafter defendant no.3 began contending that she was his

legatee with respect to suit schedule properties under Will dated

21.08.1984. And when she filed application for mutation of revenue

records in her name, objections were filed by defendant Nos.1 and

2; a dispute was registered and it was held that 'A' schedule

properties were joint family properties. Against order of Deputy

Tahashildar, defendant No.3 filed appeal. The Assistant

Commissioner, Sirsi, vide order dated 08.09.1993 allowed the

appeal and ordered that suit schedule properties are properties of

defendant No.3 and directed Revenue Authorities to enter name of

defendant No.3, in respect of properties. As defendant No.3 was

enjoying profits from properties, plaintiff sought for her 5/12th

share which was denied and thereby giving rise to a cause of action

for the suit. On receipt of summons, defendant Nos.1 to 3 entered

appearance. Defendant No.1 filed written statement categorically

admitting plaint averments and sought for 5/12th share each in suit

schedule properties. Defendant No.2 adopted written statement

filed by defendant No.1. Defendant No.3 filed separate written

statement denying plaint averments and contending that 'A'

schedule properties were self-acquired properties of Shivu Marati

they were granted to him by Land Tribunal. As absolute owner of

lands, he executed registered Will in favour of defendant No.3. And

sought for dismissal of suit on these grounds.

3. Based on pleadings, trial Court framed following issues

and additional issue.

1. Whether the plaintiff proves that the Will dated 21.08.1984 alleged to have been executed by the father of the plaintiff in favour of the third defendant is null and void and not binding on him?

2. Whether the plaintiff proves that he has got 5/12th share in the suit properties?

3. Whether the plaintiff is entitled for partition and separate possession of his 5/12th share in the suit schedule properties?

4. To what Decree or Order the parties are entitled to?

Additional Issue No.1:

Whether defendant No.3 proves that she has become owner and in possession of all the properties bequeathed by her father as per Will dated 21.08.1984?

In support of his case, plaintiff got himself examined as

P.W.1 and marked Ex.P.1 and Ex.P.2. Defendants got examined

four witnesses as D.W.1 to D.W.4 and marked Ex.D.1 to Ex.D.7. On

consideration, trial Court answered Issue nos.1 and 4 in the

negative; Issues nos.2 and 3 in affirmative and decreed the suit

holding plaintiff and defendant no.1 entitled to 5/12th share each

and defendant nos.2 and 3 entitled to 1/12th share each, out of

joint family properties. Assailing the Judgment and Decree,

defendant No.3 alone filed appeal before appellate Court in

R.A.No.37/2009.

4. Defendant No.3 urged several grounds in his appeal and

the finding regarding Will was also challenged. The appellate Court

after hearing, framed following points for its consideration:

1. Whether the plaintiff proves that the Will dated 21.08.1984 alleged to have been executed by the father of the plaintiff in favour of the third defendant is null and void and not binding on him?

2. Whether the plaintiff proves that he has got 5/12th share in the suit properties?

3. Whether the plaintiff is entitled for partition and separate possession of his 5/12th share in the suit schedule properties?

4. To what Decree or Order the parties are entitled to?

5. After answering Point Nos.1 and 3 in affirmative and

Point No.2 in the negative, the appellate Court allowed the appeal

in part setting aside the Judgment and Decree passed by trial Court

and holding plaintiff as entitled for 1/4th share in 'A' schedule

properties by metes and bounds. Aggrieved by the same, defendant

No.3 has preferred this second appeal.

6. Sri. Anant Hegde learned counsel for

appellant/defendant no.3 submitted that, first appellate Court

committed grave error while giving finding regarding validity of Will.

Though defendant No.3 had urged specific grounds against findings

of trial Court, appellate Court instead of examining the same,

committed material irregularity by holding that the Testator - Shivu

Marati did not have clear title over joint family properties and

therefore, could not have executed Will bequeathing them, contrary

to Section 30 of Hindu Succession Act. It was further submitted

that, appellate Court also gravely erred in holding that only plaintiff

was entitled for relief of partition and separate possession as other

parties had neither sought said relief nor paid Court Fee for such

relief. Learned counsel submitted that the appellate Court under

Section 96 of C.P.C. is required to re-appreciate the evidence and

give findings on fact as well as law. But appellate Court in this case

has not given any finding about sufficiency of proof or acceptability

of Will which was the subject matter of the suit and submitted that

instant case was fit case for remand back to first appellate Court for

giving specific finding regarding validity of Will.

7. On the other hand, Smt. Vidya Iyer learned counsel for

respondent Nos.3 to 8 - legal representatives of deceased

defendant no.2 submitted that, appellate Court had indeed erred in

restricting relief only to plaintiff. Besides, the suit was of the year

1993 and in case of remand, same may be done with appropriate

directions for early disposal.

8. Sri. S.V.Yaji, learned counsel for plaintiff opposed

submissions of appellant and submitted that first appellate Court

had considered validity of Will in detail in paragraph no.17 of

impugned Judgment and gave its finding, therefore, no substantial

question of law arose for consideration in this appeal. It was further

submitted that, no specific ground is urged in memorandum of

second appeal and even no specific substantial question of law was

proposed for consideration and therefore, sought dismissal of

appeal.

9. Heard learned counsels, perused impugned Judgment

and decree and record.

10. From the above, it emerges that relationship between

parties is not in dispute. It is also not in dispute that suit schedule

properties were joint family properties inherited by testator - Shivu

Marati. The dispute is with regard to claim of defendant no.3 that

'A' schedule properties were bequeathed by Shivu Marati in her

favour under Will dated 21.08.1984.

11. In the instant case though validity of finding of trial

Court regarding Will was erroneous was framed as point for

consideration, appellate Court instead of giving finding with regard

to validity of Will has given a finding that testator did not have

power to execute Will with regard to joint family properties; did not

have clear title over joint family properties and bequest was

unauthorised and illegal and proof of Will would be of no

consequence. It is settled law that first appellate Court in an appeal

under Section 96 of C.P.C. is under a duty to consider all issues of

fact and law and on re-appreciation of evidence give findings on

same. The Hon'ble Supreme Court in the following cases Vinod

Kumar Vs. Gangadhar, reported in (2015) 1 SCC 391, Lallu

Yadav and others Vs. State of Bihar, reported in (2005) 10

SCC 242 and Madhukar and others Vs. Sangram and others

reported in (2001) 4 SCC 756 explained about power and duties

of first appellate Court while considering an appeal under Section

96 of C.P.C. Failure to give finding on any specific issue or point for

consideration would be a substantial question of law. Hence appeal

has to be allowed and remanded to first appellate Court. However,

while doing so taking note of fact that, suit of plaintiff is of year

1993, appropriate directions for early disposal are required to be

issued.

12. In the result, appeal is allowed, impugned Judgment

and Decree dated 29.06.2012 passed by Fast Track Court, Sirsi, in

R.A.No.37/2009 is set aside and matter remitted back to the first

appellate Court with a direction to re-hear the appeal and dispose it

of in accordance with law as early as possible or within a period of

three months after withdrawal/relaxation of Standard Operating

Procedure (S.O.P.) during COVID-19 pandemic. No order as to

costs.

SD/-

JUDGE

*Svh/-

RSA No.6235/2012

RVHJ:

25.02.2021

ORDER

The above matter was disposed of on 15.01.2021.

From the cause title of the Judgment, it is seen that names of the respondent Nos.3 to 8 are inadvertently omitted. Hence, names of respondent Nos.3 to 8 are ordered to be included in the cause title and fresh certified copy of Judgment to be issued to the parties.

This order shall be made part of the Judgment dated 15.01.2021.

Sd/-

JUDGE

*Svh/-